Public Service Co. of North Carolina, Inc. v. Lovin

177 S.E.2d 448, 9 N.C. App. 709, 1970 N.C. App. LEXIS 1447

• Court: Court of Appeals of North Carolina
• Decided: November 18, 1970
• Docket: 7028SC521
• Status: Published

Opinion

CAMPBELL, Judge.

On 13 April 1970 Judge Hasty denied petitioner’s motion to dismiss respondent’s appeal to the Superior Court, and petitioner gave notice of appeal to the Court of Appeals. Petitioner’s record on appeal was docketed in this Court 15 July 1970. Rule 5 of the Rules of Practice in the Court of Appeals requires the record on appeal, absent an order extending the time, to be docketed within ninety (90) days after the date of the judgment or order appealed from. There is no order extending time for docketing in the record before us. Accordingly, for failure to docket the record on appeal within the time allowed by the rules, this appeal is dismissed.

However, we have reviewed the record and find no prejudicial error. G.S. 40-19 specifically authorizes the Judge of the Superior Court to “make such order in the premises as to him shall seem right and proper.” We think that under this authority Judge Martin had the discretionary power to allow the withdrawal of a deposit in a condemnation proceeding without prejudice to the withdrawing party to continue further litigation. It was incumbent upon the petitioner, if aggrieved by the order of Judge Martin, to object and except thereto. The petitioner did not do so, but instead sought relief by a motion before another superior court judge. One superior court judge cannot modify an order or judgment of another superior court judge, even if based upon an erroneous application of legal principles. In re Register, 5 N.C. App. 29, 167 S.E. 2d 802 (1969).

Appeal dismissed.

Judges Britt and Hedrick concur.